from the how-dare-the-judge-be-reasonable! dept

The RIAA's war against reasonableness continues. As totally and completely expected after Judge Michael David reduced the jury award against Jammie Thomas-Rasset from $80,000 per song shared to a still ridiculous $2,250 per song shared, the RIAA has now appealed the case to the Eighth Circuit appeals court. Now is when the case finally starts to get more interesting. The RIAA is actually challenging three parts from the three prior trials (as you may recall, the first two were tossed out). Specifically, the RIAA is asking:

Whether the District Court erred by concluding that making a copyrighted work available for download on an online file-sharing network is insufficient to constitute a 'distribution' under 106(3) of the Copyright Act, and therefore refusing to enjoin Defendant from making Plaintiffs' copyrighted sound recordings available to the public.

Whether the District Court erred by concluding that it had committed an error in instructing the jury that making a copyrighted work available for download on a online file-sharing network constitutes a "distribution' under 106(3) of the copyright Act and therefor vacating the jury's verdict and ordering a new trial.

Whether the District Court erred by holding that the jury's award of statutory damages for defendant's willful copyright infringement violated the due process clause even though it was well within the range of damages awards authorized by 504(c) of the Copyright Act.

All three are interesting legal questions. The last one may be the biggest, but the hardest to succeed on. The reasoning used so far by two different judges in dropping jury awards is that the jury awards were so out of line with reality that they violated due process. The RIAA is scared to death that any sort of reasonable awards be associated with copyright law, because they're still under the ridiculously misguided belief that absolutely insane judgments for millions of dollars will scare people into no longer sharing files. The thing is, it's likely they have this misjudged in a big, bad way. The awards in the millions of dollars for just a few songs seem so incredible and so unfathomable, that most people simply think it's impossible. I honestly believe that they'd have a lot more luck if the fines were seen as much lower and much more within the grasp of the average file sharer. But the RIAA is not known for thinking logically.

The first two issues are actually important as well, though they'll get less attention. It's a key fighting point by the RIAA: which is whether or not a copyright holder needs to prove actual distribution to show an infringement of the distribution right under copyright law... or if merely "making available" constitutes distribution. This has been a major point of contention. The RIAA relies on a case about library books to say that merely "making available" is a violation of the distribution right, but other rulings and basic common sense on what constitutes distribution, suggest that merely making available is not, in fact, distribution by itself.

Reader Comments

Seems to me, even if "making available" is not itself direct infringement, the court would still have the power to enjoin the defendant from making songs available via a file sharing network, since that may constitute contributory infringement or inducement to infringe, but also since courts are generally empowered to craft injunctions reasonably designed to prevent future infringement, even if they go somewhat beyond the scope of what was actually found to be a violation.

The damages appeal should be interesting, and I would not be surprised to see the Supreme Court get that question eventually.

We've already seen that the RIAA has failed in scaring people into not violating their copyrights in the face of possible litigation. We've already seen that some people actually getting hosed by the RIAA in civil court has failed as a deterrent.

The entire concept of using the Thomas-Rasset trials as a deterrent is silly because it only shows that the RIAA will get tripped up in what few cases it actually takes to a jury even if it manages to acquire a "win." Sure, it's hell for Thomas-Rasset, but at this point she has nothing to lose by fighting because the RIAA has shown that they want to bankrupt her for life to set an example.

They further show that it's unethical to patronize their businesses because that money is clearly going to the unethical practice of ruining people's lives.

Excessive fine?

"Whether the District Court erred by holding that the jury's award of statutory damages for defendant's willful copyright infringement violated the due process clause even though it was well within the range of damages awards authorized by 504(c) of the Copyright Act."

Rather than the due process clause, how about the 8th amendment prohibition against excessive fines? I think it should apply even though it's not a criminal case, since the damages are statutory.

Being that they are fighting civil rather than a criminal case, it is very likely that "making available" should be enough to show the intent, and certainly being able to download even a single part via P2P from the defendant would show a willingness to distribute.

The second follows the first. For me it is similar to solicitation for prostitution, you don't have to actually perform the act to have made the case. Offering up of the "goods" should be enough, especially on a civil level.

The final one is also likely to go the MPAA's way, because the law is very clear and has limitations built in. The laws are not open ended, the jury didn't randomly come up with a stupidly large number that is beyond the scope of the law, but rather came up with a number that is within the scope of the law as written. Unless the law can someone be invalidated (first amendment challenge, perhaps), there is little to say that the law is wrong.

In front of SCOTUS (if they ever get there), the actions of a judge who appears to be trying to bend the law will not go over well. There is little justification for setting aside a jury award that is within the scope of the law.

The 8th amendment won't be an issue here, for two reasons. First, this isn't really a "fine" in the sense of a criminal action, and secondly that the jury award is within the boundries of the law as written, passed, and signed into law. It's pretty hard to get around that.

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Disagree:

Article 1 Section 8: Powers of CongressTo promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

If it is not promoting the progress and people can show that those laws become unconstitutional no?

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The prostitution example might be similar if they charge was for offering to download illegally. Saying you got a snapshot of one piece of the act and trying to prove the whole situation with that one piece is closer to saying you got some bits of a file from that ip address.

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The final one is also likely to go the MPAA's way, because the law is very clear and has limitations built in. The laws are not open ended, the jury didn't randomly come up with a stupidly large number that is beyond the scope of the law, but rather came up with a number that is within the scope of the law as written. Unless the law can someone be invalidated (first amendment challenge, perhaps), there is little to say that the law is wrong.

Kind of funny really. I had a discussion the other day with an AC (perhaps even you) where they thought that YouTube lived in the "margins of the law", but now talking about the MPAA it's all good if they are within "the scope of the law as written". Seems like double standards to me.

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Two very different things. The copyright states a minimum and maximum, which is communicated to the jury, and they come back with the judgement amount that is valid and legal within the law.

The "margins of the law" issue comes when a law is intended to do something, but because of the way it is written, it creates a grey area where companies can profit. While many people think DMCA is very strong "pro copyright", it is actually incredibly weak, because it creates all the needed legal defenses to allow widescale abuse of copyright, giving everyone an exit ramp to escape liablity. The law wasn't intended to do that, it didn't intent to create a delay between notification and action, but it has in effect done that.

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There is no double standard, as it is two entirely different things.

Let me see if I understand this correctly. The first is completely black & white and crystal clear because it follows exactly what the law says and the second is fuzzy shades of grey because it follows exactly what the law says.

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"There is little justification for setting aside a jury award that is within the scope of the law."

Except that the Copyright Act is not the only law we're dealing with. We are also dealing with the Supreme Court's interpretation of the due process clause. It has held in some cases that damages awards that are many multiples of any actual harm violate this provision.

Saying a the jury award is within the bounds of the statute doesn't answer the ultimate question of "substantive" due process.

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What you don't seem to understand is that the courts are designed by the founders of the US through the Constitution to test the laws of the land. When the courts find that a particular law or part of a law violates the Constitution, they will invalidate that law or part.

The US Supreme Court does this all the time.

Just because the Jury Award is "within the boundries of the law as written" does not mean that the US Supreme Court will not follow the Thomas judge and invalidate the jury award because it violates our constitutional rights to be protected from excessive fines and punishments.

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I am amazed that you can support this vindictive and meaningless lawsuit. What happens if, after all avenues of appeal have been exhausted, she is faced with a life of invitable poverty and commits suicide? Really have you NO shame?

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That part about making available probably will pass the reason is simple, anyone can make it available and it happens a lot and I do mean a lot by accident, anyone with Google can do a search and find thousands upon thousands of shared folders that were accidentally marked to share.

You can ask for it all you want....

But I don't have a million dollars, so the difference between getting 1 million, 2 million, or a billion dollars from me doesn't make a difference. The RIAA just seems like Dr. Evil cackling asking for 1 million dollars. Better off trying to get blood from a rock.

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say that merely "making available" is a violation of the distribution right

Why not? After all, if you get busted with a certain amount of drugs they charge you with possesion with the intent to distribute. Don't you know, they are mind readers, just having intentions is against the law.

common sense

"...basic common sense on what constitutes distribution, suggest that merely making available is not, in fact, distribution by itself."

To play devil's advocate:

My common sense (or lack thereof) is troubled by the idea that whether I've done something wrong is not based on my actions, but on the actions of others (i.e. whether others have downloaded something I posted). Or that the seriousness of my crime depends on not what I do, but on how much others do.

Well, after all the "reality" talk on the "New Fox Delay" thread...

It's still $2250 per song here. Welcome back to the reality that's external to Techdirt, where you'll need more than smart-ass one-liners.

The penalties for "piracy" can be made arbitrarily high.

Stop your knee-jerk reactions for just a second... They (the content Mafia plus gov't) don't /actually/ care that you (or even many people) "pirate" songs or TV shows. You're WAY short-sighted if you think that stopping "illegal" downloads is the goal: in fact, they want MORE people to do so! It's the CONTROL of you all being /criminals/ that's important, of being able at any time to slap you with outrageous fines (or the coming jail terms) just for sharing files. The gov't needs "criminals" in order to rule.

So the IRONY is that while you think you're "free" and "liberating data" and so on, by doing so you've actually made yourself /subject/ to corporatism! -- Tyranny doesn't get you for big meaningful acts of rebellion, but tiny ones.

My advice is that NOW is the time to avoid it, lest you become an example case. The system IS cracking down. -- Just ask that Swartz fellow how looking at decades in prison has changed his mind.

Re: Well, after all the "reality" talk on the "New Fox Delay" thread...

Re: Well, after all the "reality" talk on the "New Fox Delay" thread...

I do agree with most of this. They don't really want to actually stop the "illegal" downloading (not yet anyways). In fact, if you look at the way the work, it's as if (like the Fox story below) they look for ways to push more people to pirate so at to have more ammunition to push for stronger and more draconian laws.

I saw this coming more than a decade ago when I started arguing that we were slowly being pushed back towards feudalism, except instead of landholders, it would be corporate overlords. The idea seemed so "fringe" to most back then, but with each passing year the reality of it seems to grow closer and closer.

And I agree the best way to control a population is to criminalize it. Their War on Drugs (especially pot) was one effective tool to do so. But given they are losing the battle against outlawing pot, they need to replace it with something equally mass criminalizing.

Where I stopped agreeing was the last paragraph. Like Benjamin Franklin, I am not going to simply except "this is the way it is" and work diligently to counter tyranny as I am able.

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The RIAA is wrong and the law is wrong

The fact that the RIAA has the chutzpa to file this appeal, the fact that such an appeal is even allowed, and the fact that such an absurd waste of resources has been expended on such a trivial infringement shows that the whole copyright system is corrupt beyond repair, and that the management of the RIAA are irresponsible, reprehensible, irrational, and immoral.

This case proves that no company should ever be allowed to hold a copyright on anything, because they will abuse that right to the detriment of every human being on the planet.

Might this stance backfire?

On the question of "Whether the District Court erred by concluding that making a copyrighted work available for download on an online file-sharing network is insufficient to constitute a 'distribution' under 106(3) of the Copyright Act," I've always wondered whether the copyright owner position might backfire, and harm all copyright owners. Given that the 106(3) right is expressly made subject to 109(a) (the first sale doctrine), one would think that any expansion in the reach of 106(3) to cover making available a copy for reproduction over the Internet would necessarily expand the reach of 109(a) as well. Although the plain language of 106(3) clearly applies to "copies and phonorecords" distributed in tangible form (as those two are defined as tangible objects, if plain English can make leaving your copy out where someone can copy it a violation of the distribution right, then wouldn't anyone who legally reproduced a work from a copy or phonorecord that the copyright holder made available over the Internet necessarily have the right, without the consent of the copyright holder, to make that copy or phonorecord available to others? I know it sounds silly, but no sillier than saying I "distribute [tangible] copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership [of the physical object], or by rental, lease, or lending [of the physical object]" whenever I allow someone access to my copy sufficient to allow them to reproduce it.